EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22774/93

Immobiliare Saffi

against

Italy

REPORT OF THE COMMISSION

(adopted on 2 December 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 18)              1

A. The application

(paras. 2 - 4) 1

B. The proceedings

(paras. 5 - 13)              1

C. The present Report

(paras. 14 - 18) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19 - 56) 4

A. The particular circumstances of the case

(paras. 19 - 31) 4

B. Relevant domestic law and practice

(paras. 32 - 56) 5

III. OPINION OF THE COMMISSION

(paras. 57 - 106) 9

A. Complaints declared admissible

(para. 57) 9

B. Points at issue

(para. 58) 9

C. As regards Article 1 of Protocol No 1 to the Convention

(paras. 59 - 85) 9

CONCLUSION

(para. 86) 14

D. As regards Article 6 para. 1 of the Convention in the

context of the right of access to a Court

(paras. 87 - 100) 14

CONCLUSION

(para. 101) 16

E. As regards Article 6 para. 1 of the Convention in the

context of the length of the proceedings

(para. 102) 16

CONCLUSION

(para. 103) 16

F. Recapitulation

(paras. 104 - 106) 17

PARTLY DISSENTING OPINION BY MR. B. CONFORTI 18

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              19

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              27

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Italian building society, having its registered office in Livorno and acting through its managing director, Mr Rodolfo Cagliata . Before the Commission, it is represented by Mr Nino Amadei , a lawyer practising in LivorNo .

3. The application is directed against Italy. The respondent Government were represented by Mr Umberto Leanza , Head of the Diplomatic Legal Service, Ministry of Foreign Affairs.

4. The case concerns the impossibility of enforcing the eviction of a tenant from the applicant company's flat, due to the lack of assistance by the police. It raises issues under Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 23 September 1993 and registered on 15 October 1993.

6. On 11 January 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's written observations were submitted on 21 March 1995, after an extension of the time-limit fixed for that purpose. The applicant company replied on 19 April 1995.

8. On 29 March 1996 and 4 April 1996 respectively the applicant company and the Government submitted additional observations in the light of the judgments delivered on 28 September 1995 by the European Court of Human Rights in the cases of Scollo v. Italy and Spadea and Scalabrino v. Italy.

9. On 26 February 1997 the First Chamber decided to relinquish jurisdiction in favour of the Plenary.

10. On 6 March 1997 the Commission decided to declare admissible the applicant company's complaints under Article 1 of Protocol No. 1 to the Convention and Article 6 para. 1 of the Convention (length of the proceedings) and to adjourn the question whether any issue regarding the right of access to court might arise in the present case.

11. The text of the Commission's decision on admissibility was sent to the parties on 23 April 1997 and they were invited to submit their observations as regards the question whether any issue regarding the right of access to court might arise in the present case. The Government submitted their observations in this respect on 7 July 1997 and the applicant company submitted its observations in reply on 15 September 1997.

12. On 18 May 1998 the Commission declared the application also admissible in respect of the right of access to a court.

13. After declaring the case admissible, the Commission, acting in accordance with former Article 28  para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

J.-C. GEUS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

15. The text of this Report was adopted on 2 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

17. The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.

18. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

19. Company I.B., a building society, was the owner of an apartment in Livorno , which it had let to L.B.

20. In a registered letter of 20 April 1983, company I.B. informed the tenant that it intended to terminate the tenancy when the lease expired, that is to say on 31 December 1983, and asked him to vacate the premises by that date.

21. In a writ served in November 1983, company I.B. gave the tenant notice to quit (" disdetta "); the tenant refused to vacate the premises.

22. In a writ served on the tenant in November 1983, company I.B. reiterated the notice to quit and summoned the tenant to appear before the Livorno Magistrate ( Pretore ).

23. By judgment of 21 November 1983, the latter formally confirmed the notice to quit and set the date of eviction at 30 September 1984.

24. The decision was made enforceable on 7 December 1983.

25. On 30 May 1985, company I.B. served on the tenant the order (" precetto ") to vacate the flat.

26. On 26 September 1985, it served on the tenant the warning (" significazione di sfratto ") that on 19 November 1985 a bailiff would enforce the eviction.

27. Several attempts made by the bailiff on 19 November 1985, 28 March 1986, 30 September 1986, 17 December 1986, 4 April 1987 and 21 December 1987 were unsuccessful.

28. Following a corporate merger with, inter alia , company I.B., in 1988 the applicant company became the owner of the apartment at issue. It continued the enforcement proceedings in its capacity as owner.

29. Thereafter, numerous attempts (15 December 1988, 9 June 1989, 30 October 1989, 30 October 1990, 17 February 1991, 17 May 1991, 18 May 1992, 15 May 1993, 8 February 1994, 13 January 1995, 9 January 1996, 22 November 1996) by a bailiff to evict the tenant were unsuccessful, as the applicant company was never granted the assistance of the police in enforcing the order for possession, pursuant to the subsequent laws on suspension or staggering of enforcement of evictions.

30. At the time when Law No. 61 of 21 February 1989 suspending the enforcement of eviction orders came into effect, 1,186 requests for police assistance had been filed with the Prefect of Livorno , 354 of which had been issued on grounds of arrears, 722 because the lease had expired, 56 because the owner needed the premises and 55 for other reasons. The case of the applicant company was one of the above 722.

31. To date, the applicant company has not recovered possession of its apartment.

B. Relevant domestic law and practice

32. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of evictions.

I. As regards the statutory extension of tenancies

33. The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by law, was introduced by Law No. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983 depending on the dates on which the leases were signed.

34. As regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by Article 1 para. 9 of Law No. 118 of 5 April 1985 was declared unconstitutional in a decision (No. 108) handed down by the Constitutional Court on 23 April 1986. In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, made it possible to regard controls imposing restrictions as legitimate, provided that such controls were of an exceptional and temporary nature, but that perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution.

35. In its decision, the Constitutional Court also pointed out that the statutory six-month extension of leases on buildings used for purposes other than housing, prescribed by Law No. 118, should not be considered in isolation but within the context of the entire system of tenancy regulations. The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field.  Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, "was far removed from the current socio-economic conditions". Further, the law concerned did not give the lessor the possibility to regain possession of the property except in cases of absolute necessity.

36. The Constitutional Court also held that Law No. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution.

II. As regards enforcement

37. In the order for possession, the judge sets the date for the execution of the order, taking into account the condition of the tenant and of the lessor and the grounds for terminating the lease. The execution cannot be delayed for more than six or, exceptionally, twelve months. If the tenant does not vacate the premises within the time-limit set by the judge, the lessor initiates enforcement proceedings (Article 56 of Law No. 392/78).

38. Judgments are made enforceable by adding thereto the judge's order "to all bailiffs who may be requested and to whoever may be competent to enforce the judgment, to the public prosecutor and to all public safety officials (" ufficiali della forza pubblica ") to assist in the enforcement, when they are legally so requested".

39. Under Articles 608 and 513 of the code of civil procedure, the bailiff orders the tenant to vacate the premises and can request to this end the assistance of the police "whenever it is necessary". The bailiff reinstates the lessor in his or her property and gives him or her the keys thereto.

40. The police act as "assistants to the judge" (" ausiliari del giudice ").

41. Numerous provisions have established rules for the postponement, suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the premises they occupy ( ordinanze di sfratto ).

42. A first suspension was introduced by Legislative Decree No. 795 of 1 December 1984. The provisions set forth therein were incorporated in Legislative Decree No. 12 of 7 February 1985, which became Law No. 118 of 5 April 1985, covering the period from 1 December 1984 to 30 June 1985. This legislation also provided for the staggered postponement of enforced evictions to 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986 respectively, depending on the date on which the judgment recording the end of the lease had become enforceable.

43. Section 1(3) of Law No. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases:

( i ) where, after conclusion of the contract, the lessor required the property for his own use or for that of his spouse or his children or grandchildren, for residential, commercial or professional purposes, or where a lessor who intended to use the premises for one of the above-mentioned purposes (a) offered the tenant similar accommodation at a rent which he could afford and which was not more than 20% higher than the previous rent and (b) undertook to pay the costs of the tenant's removal (Article 59, first subsection, paragraphs 1, 2, 7 and 8 of Law No. 392 of 27 July 1978 ("Law No. 392") and

(ii) where, inter alia , a lessor urgently needed to regain possession of his flat as accommodation for himself, his children or his ascendants (Article 3, first paragraph sub-paragraphs 1, 2, 4 and 5 of Legislative Decree No. 629 of 15 December 1979, which became Law No. 25 of 15 February 1980 ("Law No. 25")).

44. A second suspension was introduced by Legislative Decree No. 708 of 29 October 1986, which became Law No. 899 of 23 December 1986.              It covered the period from 29 October 1986 to 31 March 1987 and provided for the same exceptions as the provisions in the preceding legislation.

45. Law No. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords ("the Provincial Committee").

46. Section 3 (5 bis ) of Law No. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing.

47. A third suspension was introduced by Legislative Decree No. 26 of 8 February 1988, which became Law No. 108 of 8 April 1988. It first covered the period from 8 February to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988.

48. A fourth suspension was introduced by Legislative Decree No. 551 of 30 December 1988, which became Law No. 61 of 21 February 1989, and covered the period up to 30 April 1989. In regions suffering from natural disasters the suspension remained in force until 31 December 1989.

49. With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions should only be authorised in gradual stages over a period of forty-eight months as of 1 January 1990 and set up a prefectorial committee responsible for deciding which cases most urgently required police intervention. Among these urgent cases there were those when the lessor urgently needed to regain possession of his flat as accommodation for himself, his spouse, his children or his ascendants. For his case to be dealt with in priority, the lessor had to make a solemn declaration.

50. All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits.

51. The system of staggered resumption of forcible evictions has been extended by a series of Legislative Decrees: Legislative Decree No. 723 of 20 December 1994 extended the date of resumption to 31 December 1995 ; Legislative Decree No. 546 of 23 December 1995 extended this date to 29 February 1996. Legislative Decrees Nos. 81/1996, 217/1996 and 335/1996 have extended that date to 26 April, 25 June and 31 December 1996 respectively.

52. Law No. 566 of 4 November 1996 ratified a series of Legislative Decrees which had not been converted into Laws and which had staggered the grant of police assistance until 30 June 1997.

53. Legislative Decree No. 172/1997 extended that date to 31 January 1998. This decree enlarged the competence of the Prefect who, besides laying down the general criteria for granting police assistance, pursuant to Article 1bis of the Legislative Decree is now responsible for fixing the actual time and modalities of the grant of police assistance taking into consideration the particular circumstances of each case and with no obligation to follow the chronological order of the requests for police assistance by the bailiffs. Accordingly, the Prefectorial Committee can nowadays only express its opinion on the general criteria for the grant of police assistance and not also on the grant of such assistance in individual cases.

54. Legislative Decree No. 7/1998 extended the date of resumption of forcible evictions to 31 October 1998.

55. By judgment No. 321 of 24 July 1998 the Constitutional Court declared that Article 1bis of Legislative Decree No. 172/1997 is in violation of the right of access to a court (Article 24 of the Italian Constitution), in that it subjects the decision on the time of the execution in the individual cases - decision which is taken beforehand by the magistrate pursuant to Article 56 of Law No. 392/78 - to a review by the prefect. The court stated that the prefect should only cooperate - in an ancillary manner - to enforce eviction orders issued by the courts; the enlargement of the authority of the prefect over individual cases had led instead to significant delays, by way of an administrative act, of the enforcement of court orders, which is in breach of the right of each individual to seek the determination of his rights by a court. The Constitutional Court underlined that the enforcement of court orders cannot be avoided or affected by administrative decisions.

56. Legislative Decree No. 375 of 2 November 1998 has extended the date of resumption of forcible evictions to 28 February 1999.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

57. The Commission has declared admissible:

- the applicant company's complaint that its right to the peaceful enjoyment of its possessions was violated on account of the impossibility for it to recover possession of its apartment;

- the question whether the impossibility for the applicant company to enforce the eviction order in its favour constitutes a breach of its right of access to a court;

- the applicant company's complaint that the proceedings of enforcement of the eviction order have exceeded a "reasonable time".

B. Points at issue

58. The points at issue in the present case are as follows:

- whether there has been a violation of Article 1 of Protocol No. 1 to the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention as regards the right of access to a court;

- whether there has been a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings.

C. As regards Article 1 of Protocol No. 1 to the Convention

59. Article 1 of Protocol No. 1 to the Convention provides as follows:

"Every natural and legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

60. The applicant company alleges a breach of Article 1 of Protocol No. 1 on account of the fact that for a prolonged period it has been impossible for it to recover possession of its flat, owing to the implementation of emergency legislative provisions on residential property leases.

The applicable rule

61. The Commission recalls that Article 1 of Protocol No. 1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle laid down in the first rule (see Eur. Court HR, National & Provincial Building Society v. the United Kingdom judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII, p.2352, para. 78).

62. The applicant company submits that it has been de facto expropriated, given that, even if it would theoretically be possible for it to sell its apartment, it could not sell it at the market price; it submits in fact that the selling price of occupied apartments is approximately 30-40% lower than that of vacant apartments. It further points out that it receives a low rent, pursuant to No. Law 392/78.

63. The Commission recalls that the Court has already found in similar situations of delays in enforcing an eviction order that, as at all times the lessors retain the possibility of alienating their property and receiving rent, and as the implementation of the provisions at issue result in the tenants continuing to occupy the flats, the situation complained of amounts to control of the use of property (see Eur. Court HR, Scollo v. Italy judgment of 28 September 1995, Series A No. 315-C, p. 52, para. 27).

64. Accordingly, the second paragraph of Article 1 is applicable.

Compliance with the conditions in the second paragraph

65. The Government argue that, in enacting the legislative provisions at issue, the Government and Parliament were concerned to avoid the social tensions and troubles to public order which would have occurred, had the considerable number of eviction orders which were issued after the expiry of the last statutory extension of leases in 1982 and 1983 been enforced at the same time. They further underline that certain financial commitments were at the same time taken by the State with a view to financing subsidised housing and granting housing benefits.

66. The Commission accepts that, in the absence of an effective housing policy, to enforce a large number of evictions simultaneously could lead to considerable social tension. Further, the Commission notes that by enacting the measures at issue the Government were concerned to protect tenants on low income.

67. Accordingly, it considers that the impugned legislation had a legitimate aim in the general interest, as required by the second paragraph of Article 1 (see, mutatis mutandis , Scollo v. Italy, loc. cit., p. 52, paras. 30-31).

68. The Commission recalls the Court's well-established case-law according to which an interference, including one falling to be considered under the second paragraph of Article 1, must strike a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued. Furthermore, in determining whether this requirement has been met, it is recognised that a Contracting State enjoys a wide margin of appreciation in such matters, and the Strasbourg organs will respect the legislature's assessment unless it is devoid of reasonable foundation (see Eur. Court HR, Mellacher and others v. Austria judgment of 19 December 1989, Series A No. 169, p. 27, para. 48; mutatis mutandis , Eur. Court HR, Gasus Dosier-und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, Series A No. 306-B, pp. 48-49, para. 60).

69. The applicant company points out that the legislative provisions at issue were designed as emergency legislation, justifiable only in the light of the temporary nature of the sacrifice imposed on the lessors. However, they have lasted so long that the lessors have been made to bear the costs of the State's inadequate housing and social policy.

70. The applicant company accepts that a fair balance must be struck between the demands of the general interest and its own interests; it points out however that the system of staggered evictions has proved inadequate: eviction orders continue to remain unexecuted , even in cases of the lessors' urgent necessity to recover the apartments. Furthermore, the system takes no account whatsoever of the interests of the lessors who - like the applicant company - wish to recover their apartments only because the lease has expired: they are kept waiting for too long. After more than fourteen years, in fact, the applicant company's case still is not entitled to priority in the grant of police assistance. In the opinion of the applicant company, the main problem resides in the lack of the indication of when it will be possible for it to recover possession of its apartment.

71. The applicant company thus maintains that the effect of the legislative provisions under consideration imposed an excessive and individual burden on it.

72. The Government point out that in the present case the only ground for the eviction is the expiry of the lease, so that the applicant company does not deserve any priority in the grant of police assistance. They thus point out that the eviction order granted to the applicant company will be enforced in accordance with the provisions of Section 3.5 of Law No. 61/89, as amended, with due regard for the priority cases provided for by the legislation and in the criterion of chronological order, subject to an assessment of the individual situations and, in any event, in accordance with the criterion of 30% of the total number of eviction orders to be enforced within the space of a month.

73. The Commission observes that, in order to deal with the chronic housing shortage, the Italian Government adopted a series of emergency measures designed firstly to control rent increases through rent freezes mitigated by occasional rises and secondly to extend the validity of existing leases.

74. In 1982 and 1983, when the last statutory extension expired, the Italian State considered it necessary to resort to emergency provisions to postpone, suspend or stagger the enforcement of court orders requiring tenants to vacate the premises they occupied. Accordingly, while in ordinary enforcement proceedings the bailiff requests and automatically obtains the assistance of the police whenever it is necessary, in proceedings for the enforcement of eviction orders the grant of police assistance has become a separate phase under the authority of the prefect, who has the power to set aside the order given by the court to both the bailiff and the police to enforce the eviction order on the date set by the court itself.

75. The Commission considers that, in principle, a system of staggering of the enforcement of court orders and, subsequently, the reinstatement of lessors in their property is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1.

76. However, such a system carries with it the risk of imposing on lessors an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a lessor’s property rights are neither arbitrary nor unpredictable.

77. The Commission observes at the outset that the system under consideration was designed as an emergency and temporary solution, aiming at allowing the gradual enforcement of all eviction orders which had become enforceable in 1984 and, more generally, at managing the intervention of the police in this sensitive area in a consistent manner and through a single authority.

78. However, the Commission observes that this "emergency" solution has turned into a well-established practice; the measures of staggering of police assistance have been taken each time for a period of some months but, since 1989 - despite the Government's assurances that no further such measures would be taken in the future - they have been reapplied nine times for a duration of almost nine years to date. No long-term law has so far been enacted.

79. Further, the Commission points out that the prefect is fully responsible for establishing, with due regard for the specific local situation and the number of sets of proceedings pending, when the police should intervene and for staggering their intervention to prevent the enforcement of eviction orders from causing social unrest. The law only provides for a general framework according to which priority must be given to cases of arrears and cases in which the lease has expired and there is a declaration of urgent need to recover possession of the property. The chronological criteria applied by the prefect take account of the individual situations, with due regard for the need to stagger evictions in such a way as not to exceed the maximum number which could be carried out simultaneously. With reference to the present case, the Commission notes that the Prefect of Livorno has determined a criterion of 30% of the total number of eviction orders to be enforced within the space of a month. The Commission further notes that Article 1bis of Legislative Decree No. 172/1997, which had even conferred on the prefect the authority to decide on the grant of police assistance in each individual case, was declared to be in conflict with the Constitution (see above, para. 55).

80. The prefect's decisions are thus, to a very high extent, discretionary and they are not subject to the control of the judge of the execution. The Commission has already pointed out that the prefect's powers are so wide that a review by the administrative courts of the manner in which this discretion has been used could not have an impact on the merits of the decision itself (see No. 20177/92, Aldini v. Italy, dec. 27.6.96; see also, mutatis mutandis , Eur. Court HR, Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A No. 315-B, p. 24, para. 24 in fine)

81. The Commission observes that the system suffers in itself from a degree of inflexibility: on the one hand, by providing that cases in which the lease has been terminated on the ground that the lessor urgently needs to recover the apartment for himself or his family always deserve priority, it automatically subordinates the possibility of enforcing non-urgent evictions to the absence of any requests deserving priority ; since there are always outstanding requests deserving priority, non-urgent evictions are in practice never enforced. No provision is made in these emergency measures - unlike in Article 56 of Law No. 392/78 - for a maximum period within which the reinstatement must occur. On the other hand, the system makes no provision for a systematic and periodical re-assessment of the degree of protection to be accorded to tenants.

82. The Commission therefore considers that the system in question, by reason of the manner in which it has been constantly reapplied and of the wide-ranging discretionary power to grant police assistance which is exceptionally conferred on an administrative authority not subjected to judicial control, coupled with the rigidity of the criteria for the grant of police assistance, has an arbitrary and unpredictable impact on the lessors' property rights which is not open to challenge.

83. The Commission observes that, in the present case, the applicant company submitted the matter of the eviction of its tenants to the ordinary courts in November 1983; it obtained an eviction order in its favour on 21 November 1983 and the judge originally set the eviction at 30 September 1984. In 1989, the applicant company's case was one of the 722 which were not entitled to priority in the grant of police assistance. Even today, some fourteen years after the date originally set for the eviction, the applicant company's case still is not entitled to priority. Nor is it possible to foresee when it will be so entitled, and this despite the fact that police assistance should admittedly be granted in chronological order. The applicant company has thus been left in a state of uncertainty as to when it will be able to dispose of its property with vacant possession. In addition, there existed no possibility for the applicant company to require the Government to take into account particular difficulties which it might have encountered as a result of the delay in the eviction or to seek compensation for the prejudice suffered thereby (see, mutatis mutandis , Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A No. 52, pp. 26, 27, paras. 70, 71).

84. Furthermore, nothing in the file suggests that the tenant occupying the applicant company's premises deserves a particularly strong protection. Nor have the Government submitted any such argument.

85. The Commission therefore considers that the applicable system whereby the enforcement of eviction orders is staggered has imposed an excessive individual burden on the applicant company and has thereby upset, to the detriment of the applicant company, the balance that must be struck between the protection of the right of property and the requirements of public interest.

CONCLUSION

86. The Commission finds, by 28 votes to 1, that in the present case there has been a violation of Article 1 of Protocol No. 1 to the Convention.

D. As regards Article 6 para. 1 of the Convention in the context of the right of access to a court

87. Article 6 of the Convention provides in its pertinent part as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ..."

88. The applicant company had originally invoked Article 6 in the context of the reasonableness of the length of the eviction proceedings; the Commission had considered though that an issue might arise in the context of the right of access to a court. Accordingly, the Commission will first examine the present case from the standpoint of the right of access to a court.

89. The respondent Government argue in the first place that Article 6 of the Convention is not applicable to the proceedings at issue, given that the staggered police assistance is "outside" the judicial process relating to the enforcement of the eviction order, since the actions of the police constitute an administrative phase which is quite separate and independent from that process. The Government stress in this respect that it is not in its capacity as "assistant to the judge" that the prefect has the power to stagger evictions, since this operation, because of its special purpose, cannot be considered as the mere enforcement of the court judgment, resulting automatically from that judgment. The procedure at issue is intended as an administrative means of preserving the overriding public interest.

90. They further submit that, even assuming that Article 6 is applicable, it was not violated.

91. The Commission recalls that Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way, it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 para. 1 should describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Article 6 (see Eur. Court HR, Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, p. 510, para. 40).

92. The Commission observes that the applicant company submitted for the determination of the Livorno Magistrate the questions whether or not it was entitled to terminate the lease, and when it would recover possession of its property. The Commission considers that the decision of the Magistrate on the latter point was also decisive for the applicant company's civil rights. The magistrate considered it appropriate, pursuant to Article 56 of Law No. 392/78, to stay the execution until 30 September 1984. No objection was filed by the tenant against this decision, which accordingly became final.

93. However, as a result of the emergency measures enacted by the Italian Government, the question of when the judgment is to be executed has been de facto withdrawn from the courts and conferred on the said administrative authority, the prefect, who in the present case has refused police assistance, thus staying the execution, for some fourteen years to date.

94. The Commission notes that it is undisputed that the prefect cannot be regarded as an independent tribunal within the meaning of Article 6 para. 1.

95. The Commission recalls that the Court has previously held that the conditions laid down in Article 6 para. 1 are met only if decisions of the administrative authorities binding on the courts are effectively reviewed by the courts (see Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A No. 179, pp. 22, 23, para. 70).

96. In the present case, however, the Commission observes that what is at issue is not the extent of the judicial review of an administrative decision, but rather the extent of the impact of an administrative decision in overruling de facto a final, binding order issued by a court.

97. The Commission shares the conclusion reached by the Italian Constitutional Court that the grant to the prefect of authority over individual cases infringed the lessors' right of access to a court.  The Commission underlines further that the prefect admittedly takes into account and assesses the individual situations while applying the chronological criterion to the grant of police assistance in non-urgent cases (see above, para. 72), an assessment which is conferred on the judge of the execution under Article 56 of Law No. 392/78. The Commission considers that the prefect's choices - even assuming that they are only of a general character - inevitably affect the enforcement of the individual eviction orders, thus frustrating the assessment made by the court.

98. The Commission considers this substitution of a discretionary administrative action for a judicial function to be contrary to the principle of the rule of law.

99. Furthermore and at any rate, the Commission has already established (see above, para. 80) that, although the decisions of the prefect can be appealed to the administrative courts, these courts do not have "full jurisdiction" within the meaning of the jurisprudence (see Eur. Court HR, Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A No. 58, p. 16, para. 29). This means that the decisions taken by the prefect remain without any effective judicial review.

100. In the light of the above, the Commission considers therefore that there has been a violation of the applicant company's right of access to a court within the meaning of Article 6 para. 1 of the Convention.

CONCLUSION

101. The Commission finds, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the right of access to a court.

E. As regards Article 6 para. 1 of the Convention in the context of the length of the proceedings

102. In the light of its finding above that the applicant company's right of access to a court for the determination of its right to be reinstated in its property was violated, the Commission considers that no separate issue arises in connection with the reasonableness of the length of the proceedings relating to the reinstatement.

CONCLUSION

103. The Commission finds, unanimously, that no separate issue arises under Article 6 para. 1 in connection with the reasonableness of the length of the eviction proceedings.

F. Recapitulation

104. The Commission finds,  by 28 votes to 1, that in the present case there has been a violation of Article 1 of Protocol No. 1 to the Convention (para. 86).

105. The Commission finds, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the right of access to a court (para. 101).

106. The Commission finds, unanimously, that no separate issue arises under Article 6 para. 1 in connection with the reasonableness of the length of the eviction proceedings (para. 103).

M.-T. SCHOEPFER S. TRECHSEL

          Secretary      President

to the Commission        of the Commission

(Or. English)

PARTLY DISSENTING OPINION BY MR. B. CONFORTI

I regret not to be able to agree with the majority of the Commission insofar as it reached the conclusion that there was a violation of Article 1 of Protocol No. 1 in the present case.

In the cases of Spadea and Scalabrino v. Italy  and Scollo v. Italy (paras. 36 - 38 and 35 - 37  respectively) the Court, after stating that housing shortages are an almost universal problem of modern society, went on saying that the Italian system of staggering of the grant of police assistance is not in itself incompatible with Article 1 of Protocol No. 1, provided that it manages to strike a fair balance between the competing interests at stake. The Court noted that the Italian system aims at protecting tenants on low income who deserve social protection, providing though exceptions aiming at protecting the interests of  landlords who urgently need to recover their property for themselves or their family and who are owed arrears of rent. Applying these principles to the particular circumstances of each case,  the Court reached two opposite conclusions, namely that Mr. Scollo’s rights under Article 1 of Protocol No. 1 were violate, whereas Mr. Spadea’s and Mrs. Scalabrino’s property rights were not.

I find it difficult to accept that the principles laid down by the Court in September 1995 should not be applied today and to agree with the opinion expressed by the majority of the Commission that a violation of landlords’ property rights occurs in any case, by the mere reason of the staggering of the grant of police assistance.